Victorian Consolidated Legislation

Marriage Act 1958 - FIRST SCHEDULE

PART VII GUARDIANSHIP AND CUSTODY OF MINORS	*	*	*	*	*
		(2)	Sections one hundred and thirty-three one hundred and thirty-four one hundred and thirty-five shall be read and construed as in aid and not in derogation of the provisions of the Children, Youth and Families Act 2005.
	133.	Principle on which questions relating to minors are to be decided
     Where in any proceeding before any Court (whether or not a Court within the meaning of this Part) the administration of any property belonging to or held on trust for a minor, or the application of the income thereof is in question, the Court in deciding that question shall regard the welfare of the minor as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father or any right at common law possessed by the father in respect of such administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father.
	134.	Equal right of mother to apply to court
     The mother of a minor shall have the like powers to apply to the Court in respect of any matter affecting the minor as are possessed by the father.
	135.	Rights of surviving parent as to guardianship
		(1)	On the death of the father of a minor the mother, if surviving, shall, subject to the provisions of this Part, be guardian of the minor, either alone or jointly with any guardian appointed by the father.
		(2)	On the death of the mother of a minor the father, if surviving, shall, subject to the provisions of this Part, be guardian of the minor, either alone or jointly with any guardian appointed by the mother.
		(3)	The father of a minor may by deed or will appoint any person to be guardian of the minor after his death.
		(4)	The mother of a minor may by deed or will appoint any person to be guardian of the minor after her death.
		(5)	Any guardian so appointed by the father or the mother shall act jointly with the mother or father, as the case may be, of the minor so long as the mother or father remains alive unless the mother or father objects to his so acting.
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		(7)	Where guardians are appointed by both parents, the guardians so appointed shall after the death of the surviving parent act jointly.
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	138.	Power to Court to remove guardian
     The Court in its discretion shall, on being satisfied that it is for the welfare of the minor, remove from his office any testamentary guardian, and may also if it deems it to be for the welfare of the minor appoint another guardian in place of the guardian so removed.
	139.	Saving
		(1)	Subject to subsection (3), a guardian under this Part besides being guardian of the person of the minor, shall have all the rights powers and duties of a guardian of the minor's estate including in particular the right to receive and recover in his own name for the benefit of the minor property of whatever description and wherever situated which the minor is entitled to receive or recover.
		(2)	Nothing in subsection (1) shall restrict or affect the power of the Court to appoint a person to be or to act as the guardian of a minor's estate either generally or for a particular purpose or to vary or revoke any such appointment.
		(3)	Subsection (1) shall not apply to a guardian under this Part so long as there is a guardian of the minor's estate alone.
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	148.	Earnings of child
     No father shall have any right to the wages or earnings of any minor child while such child is in the control and custody of the mother thereof.
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	153.	Saving
     Nothing in this Part contained shall interfere with or affect the power of the Court to consult the wishes of the child in considering what order ought to be made, or diminish the right which any child now possesses to the exercise of its own free choice.
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	155.	Rules
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		(2)	The Rules of law and practice of the Court relating to proceedings in forma pauperis shall with the necessary modifications apply to proceedings in the Court relating to any matter or thing authorized or permitted under this Part.
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	156.	Capacity of married women
		(1)	Subject to this Part a married woman shall-
			(a)	be capable of acquiring holding and disposing of any property whatsoever;
			(b)	be capable of rendering herself and being rendered liable in respect of any tort contract debt or obligation whether committed entered into or contracted before or after marriage;
			(c)	be capable of suing and being sued in respect of any such tort contract debt or obligation or otherwise;
			(d)	be subject to the enforcement of judgments and orders;
			(e)	be capable of being appointed and acting as trustee, executrix, administratrix, next friend, guardian or guardian ad litem of a minor or in any other representative or fiduciary capacity whatsoever and of doing any act in the law either in such a capacity or in her personal capacity-
in all respects as if she were a feme sole and whether separately or jointly or in common with any other person including her husband.
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	157.	"Separate property" and "restraint on anticipation" abolished
		(1)	Subject to this Part all property whatsoever which-
			(a)	immediately before the commencement of the Marriage (Property) Act 1956 was the separate property of a married woman or held for her separate use in equity; or
			(b)	belongs at the time of her marriage to a woman married after the commencement of the Marriage (Property) Act 1956; or
			(c)	after the commencement of the Marriage (Property) Act 1956 is acquired by or devolves upon a married woman-
shall belong to her in all respects as if she were a feme sole and may be disposed of accordingly.
		(2)	Any instrument executed on or after the commencement of the Marriage (Property) Act 1956 shall be void in so far as it purports to attach to the enjoyment of any property by a woman any restriction upon anticipation or alienation which could not have been attached to the enjoyment of that property by a man.
	158.	Execution of general power
     The execution of a general power by will by a married woman shall have the effect of making the property appointed liable for her debts and other liabilities in the same manner as her estate is liable under this Part.
	159.	Abolition of husband's liability for wife's torts and ante-nuptial contracts debts and obligations
		(1)	Subject to this Part the husband of a married woman shall not, by reason only of his being her husband, be liable-
			(a)	in respect of any tort committed by her whether before or after the marriage, or in respect of any contract entered into or debt or obligation incurred by her before the marriage; or
			(b)	to be sued or made a party to any legal proceeding brought in respect of any such tort contract debt or obligation.
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		(3)	In the case of a decree for judicial separation or a decree nisi for dissolution or nullity of marriage if, while the separation continues or (as the case may be) before the decree nisi is made absolute or discharged or reversed, the husband or wife dies intestate as to any property such property shall devolve as if the surviving spouse had predeceased the deceased:
Provided that in any such case where there is a total intestacy the Supreme Court may on the application of the surviving spouse, made within six months of the grant of letters of administration of the estate or such further time as the court allows, at its discretion order that the surviving spouse shall be entitled to and shall have a charge upon the residuary estate (within the meaning of Division six of Part I of the Administration and Probate Act 1958) of the deceased spouse for such sum as the court determines but not exceeding the amount or value which the court considers the surviving spouse would have been entitled to if there had been no such decree; in which case the court shall direct that a certified copy of such order be made upon the letters of administration of the estate of the deceased and for that purpose shall retain in custody such letters of administration until such copy is made:
Provided further that nothing in this subsection shall deprive the surviving spouse of any rights other than rights of succession under the intestacy as widow or widower of the intestate.
	160.	Husband or wife may sue each other for tort
		(1)	A husband or a wife may sue the other for any cause of action in tort arising after the commencement of the Marriage (Liability in Tort) Act 1968.
		(2)	A husband or wife shall have against the other the same civil remedies and remedies and redress by way of criminal proceedings for the protection and security of his or her property as if they were both unmarried.
		(3)	In any proceeding under this section-
			(a)	it shall be sufficient to allege that the property is the property of the husband or wife (as the case may be);
			(b)	the husband or wife shall be competent to give evidence against the other notwithstanding any statute or rule of law to the contrary.
		(4)	No criminal proceeding shall be taken by any husband or wife against the other by virtue of this Part while they are living together as to or concerning any property claimed by him or her, nor while they are living apart as to or concerning any act done while they were living together concerning property claimed by him or her, unless such property has been wrongfully taken by the husband or wife when leaving or deserting or about to leave or desert the other.
	161.	Questions between husband and wife as to property
		(1)	In any question between husband and wife as to the title to or possession or disposition of property (including any question as to investment by one of moneys of the other without consent) either the husband or the wife or any person on whom conflicting claims are made by the husband and wife may apply to the Supreme Court or (at the option of the applicant irrespective of the value of the property in dispute) to the County Court.
		(2)	In addition to and without in any way limiting the powers conferred by section 37 of the Supreme Court Act 1986 or section fifty of the County Court Act 1958 the Supreme Court or the county court (as the case requires) may, upon the application of any party to proceedings under this section, grant an injunction restraining any person from making any threatened or apprehended conveyance, assignment, sale, or other disposition of any property in question in the proceedings until the proceedings are heard and determined.
		(3)	Subject to the next succeeding subsection but notwithstanding any other Act or law to the contrary the Court may make such order with respect to the title to or possession or disposition of the property in dispute (including any order for the sale of the property and the division of the proceeds of sale, or for the partition or division of the property) and as to the costs of and consequent on the application as it thinks fit and may direct any inquiry touching the matters in question to be made in such manner as it thinks fit.
		(4)	Upon the hearing of any application between husband and wife under this section-
			(a)	the Court shall not exercise the power conferred upon it by the last preceding subsection so as to defeat any common intention which it is satisfied was expressed by the husband and the wife and shall not take into account in exercising that power in relation to the property in question any conduct of the husband or of the wife which is not directly related to the acquisition of the property or to its extent or value; and
			(b)	husband and wife shall, to the exclusion of any presumption of advancement or other presumption of law or equity, be presumed, in the absence of sufficient evidence of intention to the contrary and in the absence of any special circumstances which appear to the Court to render it unjust so to do, to hold or to have held as joint tenants so much of any real property in question as consists of a dwelling and its curtilage (if any) which the Court is satisfied was acquired by them or either of them at any time during or in contemplation of the marriage wholly or principally for occupation as their matrimonial home.
			(5)     (a)	For the purpose of giving effect to any order made under this section the Court may set aside any conveyance, assignment, sale or other disposition of any property in question in the proceedings if it is made to defeat an existing or anticipated order with respect to that property.
			(b)	In exercising its powers under this subsection the Court shall have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.
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		(7)	The Court, if either party so requires, may hear any such application in private.
		(8)	If any person other than the husband or wife is the applicant such person shall in the matter of any such application for the purposes of costs or otherwise be treated as a stakeholder only.
		(8A)	The power of the Court to adjourn a hearing or stay an order extends and shall be deemed to have always extended to the granting of an adjournment or the staying of an order where-
			(a)	the husband and wife are living separately and apart but have not lived separately and apart for a continuous period of 12 months immediately preceding the date of the order for adjournment or the order staying the order; and
			(b)	the Court is of the opinion that-
	(i)	the adjournment or the staying of the order would not cause undue hardship to the husband or wife;
	(ii)	it is likely that proceedings for principal relief under the Family Law Act 1975 of the Commonwealth as amended from time to time will be instituted by the husband or wife within 12 months of the order for adjournment or the order staying the order; and
	(iii)	the matter would be more appropriately dealt with as ancillary to such proceedings.
		(9)	A husband or wife, instead of applying by summons or otherwise as aforesaid, may take proceedings in the Supreme Court or (at the option of the plaintiff irrespectively of the value of the property in dispute) in the county court, and the foregoing provisions of this section shall with such adaptations as are necessary apply accordingly.
		(10)	Where any question which could have been raised for decision in proceedings under this section arises between husband and wife in any other proceedings the Court shall decide the question as if the question had been raised for decision in proceedings under this section.
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Section 2. Sch. 1 amended by No. 6505 s. 2. Number of Act

Title of Act

Extent of Repeal 3726 Marriage Act 1928 So much as is not already repealed
4061 Marriage (Validating) Act 1932 The whole 4157 Mental Hygiene Act 1933
Clause (4) of Part C of Schedule 4191 Statute Law Revision Act 1933 Item in
Schedule referring to Marriage Act 1928 4210 Marriage (Divorce) Act 1933 The
whole 4264 Statute Law Revision Act 1934 Items in Schedule referring to
Marriage Act 1928 and Marriage (Divorce) Act 1933 4314 Maintenance and Alimony
(Imprisonment) Act 1935 So much as is not already repealed 4366 Marriage Act
1936 The whole 4561 Marriage (Celebration) Act 1938 The whole 4566 Marriage
Act 1938 The whole 4654 Public Trustee Act 1939 Clauses 8 and 15 of First
Schedule 4839 Marriage Act 1941 The whole 4963 Mental Hygiene (Mode of
Citation) Act 1943 Clause (6) of Schedule 5647 Evidence Act 1952 Section 4
5846 Statutes Amendment Act 1954 Section 8 6050 Marriage (Property) Act 1956
So much as is not otherwise repealed 6186 Marriage (Amendment) Act 1957 The
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